중국식 위헌심사제도로서 헌법감독제도의 현황과 과제- 위헌법률에 대한 통제가능성을 중심으로 -

Chinese mechanism of constitutional supervision is similar to the examination mechanism of violation of constitution in our country, but the subjects who make judgment on whether the law or regulation is unconstitutional or illegal is the legislative body, namely the National People’s Congress (hereinafter referred to as “NPC”) and its Standing Committee, other than the judiciary body, namely the court. However, with legislative bodies exercising the right of examining law’s violation of constitution, whether such examination can be conducted is questionable. In accordance with the Constitution of China, the NPC is the supreme legislative body, whose standing organ is the Standing Committee. But the NPC is no more than a nominal authority, and the real subject to examine the violation of constitution is the Standing Committee of NPC. According to the research, it is impossible in China to conduct the examination of the law’s violation of constitution. Under the system that the country being led by the Communist Party, namely the Party-Country system, constitution and law are both the expression of the Party and the People. Therefore, even if it may be different pro forma, but there is no difference in nature. To solve such problems, Chinese scholars put forward various solutions, among which the author is agree on the opinion that making the Standing Committee of NPC the only one legislative body, changing the system from dualization into unification, and set a supervisory authority of constitution that has the same position as the Standing Committee of NPC. However, the rule of law with Chinese Characteristics has close relationship with the position of the Communist Party, including the problem of mechanism design, so it can be deemed as a matter that change of the awareness of the law is needed. That is to say, the law should not be regarded as the tool of government, but the means of protecting human right. As long as the constitution and law are enacted, no one, including the Communist Party, shall have the power beyond the constitution and law, and to establish the real rule of law, the Communist Party shall also be under the law.